Canadian administrative law

Canadian administrative law is the body of law in Canada addressing the actions and operations of governments and governmental agencies. [David Mullan in "Administrative Law" (Irwin Law:Toronto, 2000) defines it as "the body of law that establishes or describes the legal parameters of power that exist by virtue of Statute or residual Royal prerogative." (p.3) ] That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers (ADM) such as a board, tribunal, commission, agency or minister. The body of law is concerned primarily with issues of substantive review (the determination and application of a standard of review) and with issues of procedural fairness (the enforcement of participatory rights).

Sources of law

The powers of an ADM are primarily created by statute, which is known as the "enabling statute". These powers are limited by the legislative authority of the enabling government provided under section 91 or 92 of the "Constitution Act, 1867". Superior Courts (known as Section 96 Courts) have an inherent power at common law to review any decision of an ADM. A judicial review allows for the court to consider the entire decision-making process, including the process, the findings of fact and of law. The power of judicial review is found either in the enabling statute or by virtue of the common law. [Many provinces such as British Columbia, Ontario, and Prince Edward Island, as well as the federal government, have codified the common law power. All federal ADMs are reviewable under un the "Federal Court Act" RSC 1985, C. F-7] The common law powers are derived from the four original writs of certiorari, prohibition, mandamus, and habeas corpus.

Courts may also review a decision through a statutory appeal when the review power is explicitly granted within the enabling statute that created the administrative body. Appeals are typically reviews for errors of law.

These powers are also frequently limited by privative clauses or finality clauses within the enabling statute. A privative clause will declare the ADM's decision is "final and conclusive" and/or that the ADM has "exclusive jurisdiction" over the matter, effectively removing any power of review. As established in "Crevier v. Quebec" (1981), the Constitution requires that the courts be able to supervise errors of ADMs and so the legislature cannot completely oust them from that power, nor can an ADM completely replace a Superior Court.

Substantive review

The courts' power of substantive review allows it to consider the content of an ADM's decision and decide whether is was sufficiently incorrect to warrant sending it back for reconsideration. Where a court has the power of substantive review it must undertake the review using a standard of review which dictates the amount of deference that the court should give to the ADM. The decision and the evidence are reviewed based on the appropriate standard of review for the circumstances.

Determining the standard of review is a particularly contextual process and can vary based on the type of ADM or even the specific matter at issue. The modern method to determine the standard of review is known as the "pragmatic and functional approach" or simply "standard of review analysis". ["U.E.S., Local 298 v. Bibeault", [1988] 2 S.C.R. 1048] [ [http://scc.lexum.umontreal.ca/en/2008/2008scc9/2008scc9.html|"David Dunsmuir v. Her Majesty the Queen in Right of the Province of New Brunswick as represented by Board of Management"] ] Its purpose is to determine the amount of review that the legislature intended. ["Pushpanathan v. Canada" at para. 26; "Dr. Q v. College of Physicians and Surgeons of British Columbia" (2003) at para. 21]

The determination is made based on four contextual factors:
# the presence or absence of a privative clause or statutory right of appeal;
# the expertise of the tribunal relative to that of the reviewing court on the issue in question;
# the purposes of the legislation and the provision in particular; and
# the nature of the questionndash law, fact or mixed law and fact

None of the factors are determinative and will vary in significance based on the circumstances. Not all of these factors need be examined in a particular case. From these factors, and any other applicable contextual factors, the courts will determine which of two standards of review will be applied. Where deference was intended the courts will review the ADM on the basis of reasonableness. Where little or no deference is intended the ADM will be reviewed on a standard of correctness.

Standards of review

Patent unreasonableness

Patent unreasonableness was the highest level of deference that the court could give to an ADM, prior to the Supreme Court's decision in "David Dunsmuir v. Her Majesty the Queen in Right of the Province of New Brunswick as represented by Board of Management" [ [http://scc.lexum.umontreal.ca/en/2008/2008scc9/2008scc9.html Supreme Court of Canada - Decisions - Dunsmuir v. New Brunswick ] ] on March 7, 2008. Now, only two standards remain: reasonableness and correctness.

Reasonableness simpliciter

Reasonableness simpliciter is the deferential standard that a court can give to an ADM. Where the decision is a matter of law, a mix of fact and law or a discretionary decision it is said that the decision is unreasonable where the decision is "not supported by any reasons that can stand up to a somewhat probing examination". [Canada (Director of Investigation and Research) v. Southam Inc.] In other words, it is unreasonable where "there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived." ["Law Society of New Brunswick v. Ryan", 2003 SCC 20]

Correctness

Correctness is the least deference that court can give an ADM. The court will give no deference at all and will judge the decision on the basis of whether it is correct in law. A court may substitute its own opinion for that of the ADM.

Procedural fairness

Procedural fairness concerns the entitlement of rights during the deliberation of a case before an ADM. These rights flow from two principles of natural justice, the right to be heard (audi alteram partem) and right to be judged impartially (Nemo judex in sua causa). These rights can be conveyed by the Canadian Charter, "umbrella" legislation, [See: "Statutory Powers Procedure Act", R.S.O. 1990, c. S.22 (Ont.); "Administrative Procedures Act", R.S.A. 2000, c. A-3 (Alta.); "Administrative justice, An Act respecting", R.S.Q. c. J-3 (QC).] the ADM's constituting legislation, and the common law.

Duty of fairness

The common law imposes a duty of fairness in certain administrative proceedings. [See "Nicholson v. Haldimand-Norfolk Reg. Police Commrs.", [1979] 1 S.C.R. 311] The duty can only be invoked where the circumstances satisfy a threshold based on three factors. ["Cardinal v. Director of Kent Institution", [1985] 2 S.C.R. 643;"Knight v. Indian Head School Division No. 19", [1990] 1 S.C.R. 653] First, the nature of the decision must be sufficiently administrative or quasi-judicial. Decisions that are of a "legislative or general nature" which are based on broad policy issues rather points of law are not likely to warrant a duty of fairness. [" [Attorney General of Canada v. Inuit Tapirisat of Canada", [1980] 2 S.C.R. 735 http://scc.lexum.umontreal.ca/en/1980/1980rcs2-735/1980rcs2-735.pdf] .] The second factor considers the relationship between the ADM and the individual claimant. This considers the structure and nature of the relationship and asks whether there are procedural safeguards in the relationship. [ So, for example, an at-will employee will have less entitlement than a unionized employee or a public office holder who are protected by statute and contract.] Third, the nature of the interest and the impact of the decision must be significant. This mostly concerns what is at stake amongst the parties.

Where the circumstances satisfy the threshold test to invoke a duty of fairness a claimant will be entitled to certain participatory rights including pre-hearing rights, such as rights related notice, disclosure, discovery, and delay, as well as hearing rights, such as rights related to the form of hearing, counsel, examinations, and reasons for judgment.

Baker test

The content of the duty of fairness depends on the type of right and the circumstances of the case. There are five factors that affect the content of this duty. ["Baker v. Canada (Minister of Citizenship and Immigration)", [1999] 2 S.C.R. 817] First, the court looks at the nature of the decision. It asks whether the decision is more for the purpose of resolving dispute, protecting individual rights or some other judicial purpose rather than a decision that balances many interests and primarily considers policy. The second inquiry is into the importance of the interest at stake in the decision relative to other interests. Third, the court considers the statutory scheme under which the decision is made. This primarily focuses on whether the decision is final and conclusive or if whether it is preliminary or if there is a right of appeal. Fourth, the duty depends on the legitimate expectations of the parties based on whether there were any representations by word or conduct that lead the parties to believe there was some type of procedural protection. Finally, the court will look at the procedural choices available to the ADM. The ADM must be accorded some deference to its practices and policies necessary to accomplish its mandate.

References

See also

* "National Corn Growers Assn. v. Canada (Import Tribunal)" (1990).